Embezzlement vs Breach of Fiduciary Duty: Key Differences

Have you been charged with embezzlement or breach of fiduciary duty? Here’s what you need to know

Facing criminal charges is never a simple situation. However, when the accusation involves economic crimes such as embezzlement or breach of fiduciary duty, the impact can be even greater. These crimes affect the property of others and are punishable by prison sentences that can reach up to six years, depending on the severity of the case.

In the field of white-collar criminal law, the line separating embezzlement from breach of fiduciary duty is often blurred. Both criminal offenses share common elements, such as the existence of financial harm and the violation of a duty of loyalty, but present essential differences that can determine the outcome of a criminal proceeding.

In this article, we explore in detail what each crime means, their differences, the most relevant case law and the possible penalties. Additionally, we explain how a criminal defense attorney experienced in embezzlement and breach of fiduciary duty can help you reduce the impact of the accusation and even achieve an acquittal.

What is the crime of embezzlement?

The crime of embezzlement is regulated in article 253 of the Criminal Code and occurs when a person receives money, goods or other assets with the obligation to administer them or return them to

Differences between embezzlement and breach of fiduciary duty

The line between embezzlement and breach of fiduciary duty is subtle, but crucial in terms of criminal classification. Both crimes affect the property of others and are based on a breach of trust, but their essence is distinct.

In embezzlement, the subject legitimately receives property with the obligation to return it or administer it as agreed. However, at a later time, they change their initial intention and decide to make it their own permanently, without being authorized to do so (animus rem sibi habendi).

On the other hand, in breach of fiduciary duty, the accused already had management powers over the property of others, but exceeded their functions or used it to the detriment of the owner, without there necessarily having been a permanent appropriation.

Key differences according to Supreme Court Jurisprudence

The essential differentiating criterion lies in the permanent disposition of the property:

• Embezzlement → Is consummated when the accused incorporates the property into their assets or transfers it to a third party irrevocably, showing a definitive intent not to deliver or return it or the impossibility of delivery or return, which is called the «point of no return» (Supreme Court Judgment of March 2, 2016).
• Breach of fiduciary duty → Is configured when the administrator uses the property in a fraudulent or abusive manner, causing economic harm, but without intent to appr

Legal consequences of the crime of embezzlement.

The penalties for embezzlement vary depending on the amount misappropriated and the circumstances surrounding the crime. Depending on the severity of the facts and the harm caused, the Criminal Code establishes different sentences, from fines to prison sentences of up to six years.

Penalty for the crime of embezzlement

The basic type of embezzlement is sanctioned with the same penalties as the crime of fraud:

• If the misappropriated amount does not exceed 400 euros, it will be considered a minor offense, the penalty for a minor embezzlement offense is a fine of one to three months.
• If it exceeds 400 euros, the penalty of article 248 of the Criminal Code will be imposed, that is:
• The penalty for the crime of embezzlement is 6 months to 3 years in prison, depending on the amount and the severity of the facts.

Aggravated penalties for embezzlement (Article 250 CP)

The Criminal Code contemplates an aggravated subtype when circumstances that increase the severity of the crime occur. In these cases, the penalty can reach up to 6 years in prison.

The circumstances that aggravate embezzlement include:

• When it involves basic necessities, housing or other goods of recognized social utility